Glenn v. Johnson

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-523

Filed: 7 June 2016

Orange County, No. 13 CVS 2082

NORMAN GLENN, Plaintiff,

v.

EDGAR JOHNSON, Individually and as Chairman of the Board of Trustees;

EVERETTE W. JOHNSON, JR., individually and as Chairman of the Board of

Deacons; and NEW RED MOINTAIN MISSIONARY BABTIST CHURCH, INC.,

Defendants.

Appeal by plaintiff from orders entered 29 April 2014 by Judge R. Allen

Baddour, Jr., and 24 February 2015 by Judge Elaine M. O’Neal Bushfan in Orange

County Superior Court. Heard in the Court of Appeals 22 October 2015.

Law Offices of Hayes Hofler, P.A., by R. Hayes Hofler, III, for plaintiff-

appellant.

Teague Campbell Dennis & Gorham, LLP, by Jacob H. Wellman, for defendant-

appellees Edgar Johnson and Everette W. Johnson, Jr.

Bailey & Dixon, LLP, by Philip A. Collins and G. Lawrence Reeves, for

defendant-appellee New Red Mountain Missionary Baptist Church, Inc.

McCULLOUGH, Judge.

Norman Glenn (“plaintiff”) appeals from the trial court’s order to dismiss in

part and order granting summary judgment in favor of Edgar Johnson (“Edgar”),

Everette W. Johnson, Jr. (“Everette”), and New Red Mountain Missionary Baptist

Church, Inc. (the “Church”) (together “defendants”). Upon review, we affirm.

GLENN V. JOHNSON

Opinion of the Court

I. Background

At all times relevant to this appeal, the Church was a nonprofit corporate

entity operating as a church in Durham, Edgar was a member of the Church and

Chairman of the Board of Trustees, Everette was a member of the Church and

Chairman of the Board of Deacons, and plaintiff was a member of the church.

Plaintiff also served as the treasurer of the Church and was a member of the Board

of Trustees. It was disagreements between defendants and plaintiff while he was

treasurer that allegedly resulted in harm to plaintiff and caused plaintiff to initiate

this action against defendants.

That contentious relationship is summarized as follows: The Church bylaws

require the Board of Trustees to obtain an audit annually. Edgar proposed an audit

at the quarterly Church conference in July 2012 and the proposal was approved by

the Church body. Yet, over plaintiffs’ objection, that vote of approval was later

rescinded at the quarterly Church conference in October 2012 after concerns were

raised over the cost of an audit. Also over plaintiff’s objection, Edgar then moved to

have a less costly “compilation” of the Church’s financial records completed. After

Edgar’s motion carried at the October 2012 conference, in November 2012, Edgar

requested that plaintiff write a check for a $250 retainer for the accountant who

would perform the compilation. Plaintiff refused to do so. Aware of Edgar’s request

in November 2012, in early December 2012, the Board of Deacons, chaired by

Everette, sent a letter to plaintiff requesting that he write the retainer check.

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Opinion of the Court

Plaintiff again refused to do so and did not respond. As a result of plaintiff’s repeated

refusal, the Board of Deacons sent plaintiff another letter in early January 2013

requesting that plaintiff meet with the Board of Deacons to discuss the matter.

Plaintiff, however, did not attend the meeting. At the quarterly Church conference

in January 2013, the Board of Deacons then read and presented a letter to the Church

body asking for plaintiff’s resignation from the position of treasurer. Plaintiff, who

was surprised by the request, then stood up in front of the Church body, handed over

his keys, and renounced further responsibilities as treasurer. Since that time,

plaintiff has sought on numerous occasions for the Church to clarify the reasons the

Board of Deacons requested his resignation, but defendants never did so to the

satisfaction of plaintiff.

Based on these facts, plaintiff asserted the following claims for relief in the

complaint against defendants filed on 20 December 2013

(1) Injunctive relief to enjoin the Church from “conducting any financial

transactions by the treasurer until such time as it has legally

replaced plaintiff as treasurer following the bylaws and established

church procedure[]” and to enjoin the individual defendants from “in

any way retaliating against plaintiff, or defaming plaintiff[.]”

(2) Libel and/or slander per se because “[t]he acts of defendants . . . have

been committed with malice and intent to cause plaintiff to suffer

humiliation and damage his reputation within the church

community. They have been defamatory per se, constituting

publications by the defendants to third persons which, when

considered alone . . . untruthfully charge that plaintiff has committed

wrongdoing that amounts to a crime or otherwise has subjected

plaintiff to ridicule, contempt, or disgrace in his church community.”

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Opinion of the Court

(3) Libel and/or slander per quod because “defendants’ actions have

constituted publications by defendants of statements to third parties

which, when considered with innuendo, colloquium, and explanatory

circumstances, have become defamatory, causing plaintiff to suffer

ridicule, contempt, or disgrace, and further causing special damages

. . . .”

(4) Negligent infliction of emotional distress (“NIED”) in that

“defendants negligently engaged in the . . . wrongful conduct. It was

reasonably foreseeable that said conduct would cause the plaintiff

severe emotional distress, and the conduct did in fact cause the

plaintiff severe emotional distress, necessitating professional

treatment being rendered to plaintiff . . . .”

(5) Intentional infliction of emotional distress (“IIED”) in that the

“conduct of defendants was extreme and outrageous, intended to

cause severe emotional distress, or committed with a reckless

indifference to the likelihood that such conduct would cause severe

emotional distress, and which did cause severe emotional distress to

the plaintiff.”

Defendant further alleged grounds existed to justify awards of compensatory, special,

and punitive damages.

On 24 February 2014, the Church filed a motion to dismiss and answer and

Edgar and Everette filed a separate joint motion to dismiss and answer. In response,

plaintiff filed an affidavit on 7 April 2014. Plaintiff’s affidavit reasserted the factual

bases of his claims and included copies of the Church constitution and bylaws, letters

to him from the Board of Deacons, and documentation of Church meetings as

attachments to support his claims.

Following a 7 April 2014 hearing in Orange County Superior Court on

defendants’ motions to dismiss, on 29 April 2014, Judge R. Allen Baddour, Jr., filed

an order granting defendants’ motions to dismiss in part after determining that

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Opinion of the Court

plaintiff “failed to state claims for . . . (1) [l]ibel and slander per se against all

defendants; and (2) [l]ibel and slander per quod against defendants Everette . . . and

[the Church], to the extent that such claim(s) are founded upon statements made by

. . . Everette . . . .” Thus, the judge dismissed those claims with prejudice and allowed

plaintiff’s other claims to proceed.

Defendants then filed motions to exclude expert testimony and for summary

judgment on the remaining claims on 9 January 2015. In support of the summary

judgment motions, defendants submitted numerous depositions with exhibits for the

trial court’s consideration. Following a 9 February 2015 hearing on defendants’

motions for summary judgment, on 24 February 2015, Judge Elaine M. O’Neal

Bushfan filed an order granting summary judgment in favor of defendants.

Specifically, the trial court “determined that there are no genuine issues of material

fact and that defendants are entitled to judgment as a matter of law as to all of

plaintiff’s remaining claims for [NIED], [IIED], slander per quod, injunctive relief

and punitive damages.”

Plaintiff filed notice of appeal on 18 March 2015 from the 29 April 2014 order

dismissing some of his claims and from the 24 February 2015 summary judgment

order.

II. Discussion

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Opinion of the Court

On appeal, plaintiff contends the trial court erred in entering summary

judgment in favor of defendants on his claims for NIED, IIED, and libel and/or

slander per quod. We address plaintiff’s arguments in order.

As noted above, plaintiff also appealed from the 29 April 2014 order dismissing

his libel and slander per se claims against all defendants and his libel and slander

per quod claims against Everette and the Church. Plaintiff, however, has not raised

any issues in his brief on appeal concerning the dismissal order and has abandoned

any issues concerning the dismissed claims. See N.C. R. App. P. 28(b)(6) (2016)

(“Issues not presented in a party's brief, or in support of which no reason or argument

is stated, will be taken as abandoned.”). Plaintiff has also abandoned any issues

concerning summary judgment on his claims for injunctive relief and punitive

damages by failing to raise arguments on appeal.

Standard of Review

“Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows that ‘there is no genuine issue

as to any material fact and that any party is entitled to a judgment as a matter of

law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting

Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).

In order to prevail on a motion for summary judgment, a

moving party meets its burden by proving that an essential

element of the opposing party's claim is non-existent, or by

showing through discovery that the opposing party cannot

produce evidence to support an essential element of his

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GLENN V. JOHNSON

Opinion of the Court

claim or cannot surmount an affirmative defense which

would bar the claim. Once the moving party meets this

burden, the burden is then on the opposing party to show

that a genuine issue of material fact exists. . . . If the

opponent fails to forecast such evidence, then the trial

court's entry of summary judgment is proper.

Finley Forest Condo. Ass’n v. Perry, 163 N.C. App. 735, 738-39, 594 S.E.2d 227, 230

(2004) (internal quotation marks and citations omitted).

Emotional Distress Claims

Plaintiff first contends the trial court erred by granting defendants’ motions

for summary judgment as to his NIED and IIED claims. Plaintiff claims he has raised

genuine issues of material fact as to the essential elements of both claims.

NIED

We first address plaintiff’s argument with respect to his claim for NIED.

Our cases have established that to state a claim for

negligent infliction of emotional distress, a plaintiff must

allege that (1) the defendant negligently engaged in

conduct, (2) it was reasonably foreseeable that such

conduct would cause the plaintiff severe emotional distress

(often referred to as “mental anguish”), and (3) the conduct

did in fact cause the plaintiff severe emotional distress.

Although an allegation of ordinary negligence will suffice,

a plaintiff must also allege that severe emotional distress

was the foreseeable and proximate result of such

negligence in order to state a claim; mere temporary fright,

disappointment or regret will not suffice. In this context,

the term “severe emotional distress” means any emotional

or mental disorder, such as, for example, neurosis,

psychosis, chronic depression, phobia, or any other type of

severe and disabling emotional or mental condition which

may be generally recognized and diagnosed by

professionals trained to do so.

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Opinion of the Court

Johnson v. Ruark Obstetrics and Gynecology Associates, P.A., 327 N.C. 283, 304, 395

S.E.2d 85, 97 (1990) (internal citations omitted). Thus, summary judgment in favor

of defendants on the NIED claim is proper where the evidence does not establish

negligence by defendants or establishes that the alleged negligent conduct was not

the foreseeable and proximate cause of plaintiff’s severe emotional distress. Robblee

v. Budd Services, Inc., 136 N.C. App. 793, 795, 525 S.E.2d 847, 849, disc. review

denied, 352 N.C. 676, 545 S.E.2d 228 (2000).

Now on appeal, plaintiff asserts he has suffered severe emotional distress that

was both a foreseeable result of and proximately caused by defendants’ negligent

conduct. Plaintiff cites various cases and points to evidence tending to show that

there was sufficient evidence of severe emotional distress for the questions of

foreseeability and proximate cause to be determined by a jury.

Upon review of the record, it is clear that there was evidence in the record from

which the jury could determine plaintiff had suffered severe emotional distress.

Furthermore, plaintiff is correct that foreseeability and proximate cause are

generally questions for the jury. See Acosta v. Byrum, 180 N.C. App. 562, 568, 638

S.E.2d 246, 251 (2006) (“Questions of proximate cause and foreseeability are

questions of fact to be decided by the jury.”). Plaintiff’s arguments on appeal,

however, only address the second and third elements of NIED. Plaintiff never clearly

identifies in what way defendants’ conduct was negligent.

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GLENN V. JOHNSON

Opinion of the Court

It is clear from the elements listed above that “[a] claim of negligent infliction

of emotional distress requires proof of negligent conduct.” Pittman v. Hyatt Coin &

Gun, Inc., 224 N.C. App. 326, 330, 735 S.E.2d 856, 859 (2012). In reviewing a trial

court’s grant of a motion to dismiss a NIED claim, this Court has explained that “[t]he

first element of an NIED claim requires allegations that the defendant failed to

exercise due care in the performance of some legal duty owed to [the] plaintiff under

the circumstances[.]” Horne v. Cumberland Cnty. Hosp. Sys., Inc., 228 N.C. App. 142,

148, 746 S.E.2d 13, 19 (2013) (internal quotation marks and citation omitted).

“Generally, where the facts are undisputed, [t]he issue of whether a duty exists is a

question of law for the court.” Finley Forest Condo. Ass’n, 163 N.C. App. at 739, 594

S.E.2d at 230 (internal quotation marks and citation omitted).

In Horne, the plaintiff’s failure to allege such a legal duty owed by the

defendant to the plaintiff was fatal to the plaintiff’s NIED claim. Horne, 228 N.C.

App. at 149, 746 S.E.2d at 19. In addition to failing to allege a legal duty, this Court

also explained in Horne that “[b]eyond the conclusory assertion that ‘[the defendant]

negligently engaged in the aforementioned conduct against [the] plaintiff,’ [the]

plaintiff’s complaint recounts only intentional conduct on the part of [the defendant].”

Id. (alterations in original omitted) (emphasis in original). As a result, the plaintiff

in Horne “failed to properly plead an element essential to her NIED claim[]” because

“[a]llegations of intentional conduct, . . . even when construed liberally on a motion

to dismiss, cannot satisfy the negligence element of an NIED claim.” Id.

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Opinion of the Court

Although defendants did not move to dismiss plaintiff’s NIED claim in the

present case, Horne is instructive in our review of the trial court’s grant of defendants’

motions for summary judgment.

The evidence in this case is that plaintiff was a member of the Church and

served as treasurer and a member of the Board of Trustees. Edgar and Everette were

also members of the Church and members of church boards. As in Horne, plaintiff

does not assert that defendants owed him a legal duty and fails to cite any authority

showing that a legal duty exists between church members. The only conceivable duty

owed by defendants to plaintiff was to act in accordance with the bylaws of the

Church, but it is clear from the record that any conduct by the individual defendants

in contravention to the bylaws was intentional, rather than negligent.

In arguing the trial court erred in granting summary judgment for defendants

on the NIED claim, plaintiff glosses over the first element of NIED, stating that “[he]

satisfie[d] the first two elements by offering evidence showing that it was reasonably

foreseeable that such negligence would proximately cause [his] severe emotional

distress.” Yet, as noted above, plaintiff never identifies defendants’ negligent

conduct. Even in his NIED claim in the complaint, plaintiff merely incorporates the

factual allegations and asserts as follows:

28. The defendants negligently engaged in the above

wrongful conduct. It was reasonably foreseeable that said

conduct would cause the plaintiff severe emotional

distress, and the conduct did in fact cause the plaintiff

severe emotional distress, necessitating professional

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Opinion of the Court

treatment being rendered to plaintiff . . . .

We hold these conclusory allegations and the evidence presented are insufficient to

avoid summary judgment.

Where defendant failed to allege a duty owed by defendants and there is no

evidence of negligent acts by defendants, plaintiff has failed to establish a prima facie

case of NIED and summary judgment was proper. See Smith-Price v. Charter

Behavioral Health Sys., 164 N.C. App. 349, 354, 595 S.E.2d 778, 782 (2004) (Summary

judgment was proper because an essential element of NIED was unsupported by the

evidence where the plaintiff presented no evidence that the defendant owed a duty of

care or that there was a breach such a duty.) Thus, we hold the trial court did not

err in entering summary judgment in favor of defendants on plaintiff’s NIED claim.

IIED

We next address plaintiff’s argument regarding to his claim for IIED. “A claim

for [IIED] exists when a defendant's conduct exceeds all bounds usually tolerated by

decent society and the conduct causes mental distress of a very serious kind.” Watson

v. Dixon, 130 N.C. App. 47, 52, 502 S.E.2d 15, 19 (1998) (internal quotation marks

and citations omitted). Broken down into its elements, IIED consists of: “(1) extreme

and outrageous conduct, (2) which is intended to cause and does cause (3) severe

emotional distress to another. The tort may also exist where defendant's actions

indicate a reckless indifference to the likelihood that they will cause severe emotional

distress.” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981).

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Opinion of the Court

Although plaintiff acknowledges that, “[a]s to the first element, a

determination at summary judgment of whether ‘alleged acts may be reasonably

regarded as extreme and outrageous is initially a question of law[,]’ ” Phillips v. Rest.

Mgmt. of Carolina, L.P., 146 N.C. App. 203, 213, 552 S.E.2d 686, 693 (2001) (quoting

Shreve v. Duke Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 359 (1987)), disc.

rev. denied, 355 N.C. 214, 560 S.E.2d 132 (2002), plaintiff asserts the trial court in

this case could not determine, as a matter of law, that defendants’ conduct did not

rise to the level of “extreme and outrageous” and, therefore, the issue should have

been determined by the jury, along with the issues of intent, or reckless indifference,

and severe emotional distress. See also Johnson v. Bollinger, 86 N.C. App. 1, 6, 356

S.E.2d 378, 381-82 (1987) (“[T]his Court held the initial determination of whether

conduct is extreme and outrageous is a question of law for the court: If the court

determines that it may reasonably be so regarded, then it is for the jury to decide

whether, under the facts of a particular case, defendants' conduct . . . was in fact

extreme and outrageous.”) (internal quotation marks, citation, and emphasis in

original omitted). Consequently, plaintiff concludes summary judgment on his IIED

claim was improper. In support of his arguments, defendant relies solely on Phillips,

in which the plaintiff alleged IIED after consuming food that had been spit on.

Phillips, 146 N.C. App. at 207, 552 S.E.2d at 689. On appeal of the trial court’s grant

of summary judgment in favor of the restaurant owner/operator, this Court agreed

that the trial court erred in granting summary judgment in favor of the

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Opinion of the Court

owner/operator. Id. at 213, 552 S.E.2d at 693. Recognizing that other states had

made similar conduct criminal or determined similar conduct toward prisoners was

unconstitutional, this Court “[could not] say, as a matter of law, that a food preparer

surreptitiously spitting in food intended for a patron’s consumption [did] not rise to

the level of ‘extreme and outrageous.’ ” Id. We are not convinced that the present

case is comparable to Phillips.

This Court has explained that

[c]onduct is extreme and outrageous when it is so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized

community. The behavior must be more than mere insults,

indignities, threats, and plaintiffs must necessarily be

expected and required to be hardened to a certain amount

of rough language, and to occasional acts that are definitely

inconsiderate or unkind.

Smith-Price, 164 N.C. App. at 354, 595 S.E.2d at 782 (internal quotation marks,

citations, and alterations in original omitted).

In this case, plaintiff asserts that the same conduct that was alleged to be the

basis of his NIED claim is intentional, extreme, and outrageous to support a claim of

IIED. Specifically, after incorporating by reference the factual allegations, plaintiff

asserted as follows in his complaint:

31. The above-described conduct of defendants was

extreme and outrageous, intended to cause severe

emotional distress, or committed with a reckless

indifference to the likelihood that such conduct would

cause severe emotional distress, and which did cause

severe emotional distress to the plaintiff.

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Opinion of the Court

The conduct by defendants alleged to be extreme and outrageous includes the

following: requesting that plaintiff, as treasurer of the Church, write a check for a

compilation although plaintiff was against conducting a compilation instead of a full

audit; requesting through letters that plaintiff write a check and meet with the Board

of Deacons to discuss his refusal to write a check; requesting plaintiff’s resignation

through a letter read and presented to the Church body at the quarterly conference;

ignoring, refusing, or laughing at efforts by plaintiff for reconciliation or mediation.

These acts by defendants are simply not comparable to spitting in food and we

now hold that, as a matter of law, plaintiff has failed to allege or present evidence

that defendants’ conduct in this case rose to the level of extreme and outrageous. As

a result, the trial court did not err in entering summary judgment in favor of

defendant on plaintiff’s IIED claim.

Defamation Claims

In the last issue on appeal, plaintiff contends the trial court erred in granting

summary judgment as to his claims for libel and slander per quod. We disagree.

We begin our analysis of this final issue by noting that it not entirely clear

what ruling by the trial court is being challenged. In his brief on appeal, plaintiff

asserts that “Judge Bushfan allowed dismissal of all claims, including per quod

defamation claims[,]” and contends that “Judge Bushfan, ruling on Rule 56 motions,

should have denied those motions as to defamation per quod, because she had actual

evidence before her which went beyond the mere allegations of the complaint and

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Opinion of the Court

created genuine issues of material fact as to per quod defamation among all three

defendants.” However, Judge Bushfan did not dismiss any claims, but instead

granted summary judgment in favor of defendants. Moreover, the only defamation

claims addressed in the summary judgment order were plaintiff’s libel and slander

per quod claims against Edgar and the Church, as the other defamation claims were

previously dismissed by Judge Baddour. It is the grant of summary judgment on the

libel and slander per quod claims against Edgar and the Church that we now review

on appeal.

Libel and slander are both forms of defamation – libel is written and slander

is oral. Aycock v. Padgett, 134 N.C. App. 164, 165, 516 S.E.2d 907, 909 (1999). “ ‘To

be actionable, a defamatory statement must be false and must be communicated to a

person or persons other than the person defamed.’ ” Daniels v. Metro Magazine

Holding Co., L.L.C., 179 N.C. App. 533, 538-39, 634 S.E.2d 586, 590 (2006) (quoting

Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993)), appeal

dismissed and disc. rev. denied, 361 N.C. 692, 654 S.E.2d 251 (2007); see also

Desmond v. News and Observer Pub. Co., __ N.C. App. __, __, 772 S.E.2d 128, 135,

appeal dismissed and disc. rev. denied, __ N.C. __, 776 S.E.2d 195 (2015).

Where the injurious character of the words do not appear

on their face as a matter of general acceptance, but only in

consequence of extrinsic, explanatory facts showing their

injurious effect, such utterance is actionable only per quod.

Where the words spoken or written are actionable only per

quod, the injurious character of the words and some special

damage must be pleaded and proved.

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Opinion of the Court

Beane v. Weiman Co., 5 N.C. App. 276, 278, 168 S.E.2d 236, 237-38 (1969).

In this case, it is not clear what plaintiff contends to be libelous or slanderous.

Plaintiff identifies both the letter from the Board of Deacons requesting his

resignation that was read and presented at the Church conference and prior

statements by Edgar concerning whether plaintiff had used church funds to purchase

a home and an automobile. Plaintiff then asserts that the sudden demand that he

resign after he refused to write a check fueled innuendo and speculation that he must

have done something wrong. Plaintiff further asserts that any misperception was

magnified by the refusal of the Board of Deacons and Board of Trustees to explain

their actions and to dispel any misunderstandings about plaintiff’s resignation.

Yet, upon review of the record, there is no evidence of any conduct that could

be construed as libel or slander per quod. First, concerning Edgar’s prior questions

insinuating plaintiff’s misuse of church funds allegedly made in 2009 or early 2010,

there is no evidence that the statements were made to anyone other than plaintiff.

In fact, plaintiff indicated Edgar’s statements were made directly to him.

Furthermore, any defamation claim based on those statements in 2009 or early 2010

is now barred by the statute of limitations. See N.C. Gen. Stat. § 1-54(3) (2015)

(providing a one year statute of limitations for libel and slander). Second, concerning

the Board of Deacons’ letter requesting plaintiff’s resignation, Edgar was not a

member of the Board of Deacons and plaintiff has failed to identify any false

statement in the letter.

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Opinion of the Court

As the individual defendants assert, plaintiff’s “primary argument seems to be

that the letter, [or defendants in general,] did not do enough to prevent others from

speculating that [p]laintiff may have done something wrong.” But where there is no

evidence of actionable defamation in the record, the trial court did not err in granting

summary judgment in favor of defendants on the claims of libel and slander per quod

against Edgar and the Church.

III. Conclusion

For the reasons discussed above, we hold the trial court did not err in entering

summary judgment on plaintiffs’ claims for NIED, IIED, or defamation per quod.

AFFIRMED.

Judges DIETZ and TYSON concur.

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